Tennessee

Open Government Guide

Author

Foreword

Public records. Tennessee's Public Records Act, originally passed by the legislature in 1957, mandates that governmental entities grant full access to public records to every citizen of Tennessee. The legislative policy behind the Act is enunciated in the enforcement provision that directs courts to construe the Act broadly "so as to give the fullest possible access to public records." Tennessee Code Annotated ("T.C.A.") § 10-7-505(d) (1999). The original 1957 Act provided that "[a]ll state, county and municipal records" shall be open for inspection "unless otherwise provided by law or regulations made pursuant thereto." (Emphasis added.) In 1984, the legislature amended the emphasized portion to read: "unless otherwise provided by state statutes." The Tennessee Supreme Court has construed this amendment as reserving to the legislature alone the power to make exceptions to the accessibility of public records. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986). In 1991, however, the specific language was further amended to read: "unless otherwise provided by state law." The change from "state statute" to "state law" arguably broadens the means of limiting access beyond the holding in Holt to include exemptions under common law privileges. The Public Records Act continues to go through many revisions. In addition to separate statutes throughout the Tennessee Code that create new exemptions to the Act, the Act itself has been subjected to several different pieces of legislation that modified the Act.

In 2008 the Public Records Act received substantial revisions to make it more user friendly. Changes to the Act included imposing a deadline for records custodians to respond to a request, and provisions to set a reasonable price for copies of records. Also in 2008, Tennessee created the Office of Open Records Counsel (“OORC”), as a department of the State Controller, to assist and advise public officials and the public, including the media, with open records issues. The OORC serves as an ombudsman that can mediate open records disputes and issue written opinions concerning open records issues. The OORC, and its Advisory Committee, may also review and make comments to the General Assembly on any legislation affecting Open Meetings. www.comptroller.tn.gov/openrecords

Open meetings. When the General Assembly enacted the Sunshine Law in 1974, Tennessee became the 46th state to fashion such legislation. A 1957 attempt to draft open meeting legislation died in committee. The legislature's source of authority to enact the Sunshine Law is Article 1, Section 19 of the Tennessee Constitution which provides: "That the printing presses shall be free to every person to examine the proceedings of the legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof." The opening policy statement of the Tennessee Sunshine Act echoes and specifies this broad grant of the public's right to open government:

The general assembly hereby declares it to be the policy of this state that the formation of public policy and decisions is public business and shall not be conducted in secret. This part shall not be construed to limit any of the rights and privileges contained in Article I, § 19, of the constitution of the state of Tennessee.

Thus, from its enactment, the Tennessee Sunshine Law has been construed as embodying the will of the people, speaking through their elected legislative representatives, that the benefits of open government be safeguarded through a statute that secures these benefits in broad terms. The definitional provisions of the Sunshine Law are equally sweeping. Instead of listing those government entities subject to public scrutiny, the law was enacted defines governing body to include "members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration." T.C.A. §§ 8-44-102(b)(1) (1995). This legislative history can be viewed as reflecting the lawmakers' intent that those governmental entities covered by the mandate of openness be construed expansively. Dorrier v. Dark, 537 S.W.2d at 891. Unfortunately, case law establishes that the Sunshine Law does not apply to the General Assembly itself. Mayhew v. Wilder, 46 S.W.3d 760 (Tenn. Ct. App. 2001).

Open Records

I. Statute

The Tennessee open records law (the "Act") provides for a Tennessee citizen's personal inspection of all state, county and municipal records at all times during business hours unless the records are statutorily declared to be confidential. A public record is defined as follows:

all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental entity.

T.C.A. § 10-7-503(a)(1)(A)(i). See also T.C.A. § 10-7-403 (defining "Public records within the county"). The determination of whether a document has been received "in connection with the transaction of official business" requires an examination of the totality of the circumstances. Griffin v. City of Knoxville, 821 S.W.2d 921, 924 (Tenn. 1991) (suicide notes taken into police custody are public records). Tennessee courts have had occasion to determine that certain records claimed to be exempt were in fact intended to be open: applications of those seeking the position of school superintendent, Board of Education of Memphis City Schools v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979); payroll records of a public hospital, Cleveland Newspapers Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981); and closed investigative files of a police department, Memphis Publishing Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986). Forty eight categories of exceptions to the mandate of openness are contained in the Act itself under the rubric of "confidential records." T.C.A. § 10-7-504. The legislature has enacted numerous other statutes providing that certain records be deemed confidential or closed.

A 1988 survey by a special committee of the Tennessee General Assembly found a total of 89 exemptions either limiting or barring public access to various public records. Since that time, the General Assembly has frequently enacted additional exemptions. The attached Appendix lists 365 exemptions, but a list of exemptions the OORC released on January 30, 3018 finds 538 statutory exemptions with only two scheduled to sunset, which means the General Assembly has been passing exemptions at the rate of 15.5 per year since 1988. The OORC list was prepared for the General Assembly with the understanding that it might review the list to determine if more exception should be eliminated. The OORC list may be found at http://www.comptroller.tn.gov/openrecords/. The difference between this list and the attached Appendix maybe partly one of interpretation.

A. Who can request records?

Any citizen of the state of Tennessee can request access to any records that are deemed to be records of public bodies. In 1998, the Supreme Court overturned earlier case law and held that a convicted felon is still a citizen for purposes of being able to seek access to public records. Cole v. Campbell, 968 S.W.2d 274 (Tenn. 1998) (overturning Roberson v. Rose, 17 TAM 3-28 (Tenn. Ct. App. Dec. 31, 1991) and Ray v. Stanton, C.A. No. 88-285-II (Tenn. Ct. App. Feb. 24, 1989)); Corporations and other entities may be citizens of Tennessee for purposes of the Act. See Curve Elementary School Parent & Teachers Org. v. Lauderdale County Sch. Bd., 608 S.W.2d 855, 859-60 (Tenn. Ct. App. 1980) (granting standing to an unincorporated association of state residents to sue under Tennessee open meetings law, which requires state citizenship to bring suit); Metropolitan Air Research Testing Authority Inc. v. The Metropolitan Government of Nashville and Davidson County, 17 TAM 31-21 (Tenn. Ct. App. July 8, 1992) (standing granted to a Tennessee corporation to sue under the open meetings law). Cf. Huntsville Util. Dist. v. Gen. Trust Co., 839 S.W.2d 397 (Tenn. Ct. App. 1992) (holding that the T.C.A. § 10-7-504 term "members of the public" does not include the courts and public officials in the performance of official duties and therefore such officials have access to confidential records that are not available to "members of the public").

1. Status of requester

Must be a citizen of Tennessee. The special study committee of the General Assembly that proposed the 2008 revision recommended that the state citizenship requirement be eliminated, but it was retained.

2. Purpose of request

Neither the statute nor case law imposes restrictions as to the requester's purpose for requesting access or the use he makes of the information obtained under the open records law. See The Capital Case Resource Center of Tennessee Inc. v. Woodall, 17 TAM 8-8, p.14 (Tenn. Ct. App. Jan,. 29, 1992) ("There is no statute which provides that exemption from disclosure is or may be premised on the purpose for which the citizen intends to use the requested documents").

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

The Act grants full access to the public of all governmental records "unless otherwise provided by state law." T.C.A. § 10-7-503(a) (1999). Thus, no Tennessee agencies are entirely exempted from the mandate of the Act.

1. Executive branch

Copies of any act, record, or paper in the office of the secretary of state are available to any person, "except papers relating immediately to the executive department, and, in the governor's judgment, requiring secrecy." T.C.A. § 8-3-104(10). All law enforcement personnel records are open, however, special rules apply when inspections are made of these records. T.C.A. § 10-7-503(c)(1). Applications of applicants for city school superintendent are subject to the Act. Board of Education of Memphis City Schools v. Memphis Publishing Co., 585 S.W.2d 629 (Tenn. Ct. App. 1979) (holding that applications of those seeking the position of superintendent of city schools in the possession of a search committee created by the board of education were public records).

2. Legislative bodies

The joint legislative services committee has sole authority to determine whether any member of the public may be permitted access to the legislative computer system in which confidential information is stored or processed. T.C.A. § 3-10-108(a). Direct access to such a computer may not be permitted unless protection of any confidential information is ensured. § 3-10-108(b). No information available in printed form may be obtained from the legislative computer system pursuant to the Open Records Act. § 3-10-108(c). A legislator's e-mail is subject to the Act if it was made or received in connection with the transaction of official business. Op. Atty Gen. No. 05-099 (June 20, 2005).

3. Courts

Judicial records that are exempt from the Act are: complaints of judicial disability to the Court of the Judiciary, T.C.A. § 17-5-303; proceedings involving allegations of misconduct by or the disability of an attorney, Sup. Ct. R. 9 § 25; proceedings of the court of the judiciary, Jud. Ct. R. 8; and predisposition reports of investigations and evaluations of juveniles, Juv. Proc. R. 33(e). Arguably, the separation of powers doctrine might prohibit additional judicial records from being disclosed by the legislature's enactment of the Public Records Act. See Art. II § 1, 2, Tennessee Constitution; Op. Att'y Gen. No. U92-131, 18 TAM 3-34 (Dec. 28, 1992). In Ballard v. Herzke, 924 S.W.2d 652 (Tenn. 1996), the Supreme Court held that the Tennessee Rules of Civil Procedure are state law which can accept documents from the Public Records Act. Any conflict between provisions of the Rules of Civil Procedure and provisions of the Tennessee Code which cannot be harmoniously construed shall be resolved in favor of the Rules of Civil Procedure. Therefore, documents sealed by a state court are not subject to inspection under the Act. Knoxville News Sentinel v. Huskey, 982 S.W.2d 359 (Tenn. Crim. App. 1998)

The Supreme Court ruled that the documents filed with the clerk of a court are public records but that the Act does not apply to documents that were sealed subject to a protective order. See also Memphis Publishing Co. v. City of Memphis, 19 TAM 9-2 (Tenn. Feb. 22, 1994)(deposition transcripts taken during course of bankruptcy proceedings in which city was a creditor were public records and city could not claim that deposition constituted attorney work product).

4. Nongovernmental bodies

In 2008 the Act was revised to state, “A governmental entity is prohibited from avoiding its disclosure obligations by contractually delegating its responsibility to a private entity.” T.C.A. § 10-7-503(a)(6) This amendment seems to incorporate a 2002 decision of the Tennessee Supreme Court.

Even before the above stated amendment, Tennessee courts construed the Act to cover the records of nongovernmental bodies in receipt of public funds and of advisory boards of quasi-governmental bodies. In Memphis Publishing v. Cherokee Children & Family Services, 87 S.W.3d 67 (Tenn. 2002), the Tennessee Supreme Court held that a "functional equivalency test" should be used to determine if the Act would apply to a private company retained by a government agency to perform governmental services. Whether a private entity operates as the functional equivalent of a government entity, so as to render its records subject to the Act, will be judged in light of the totality of the circumstances. Factors relevant to this analysis are: 1) level of government funding, 2) extent of government involvement or control, and 3) whether the entity was created by the government. However, not all records of non-government entities who assist government operation will be public. In early 2011, the Tennessee Supreme Court ruled a nonprofit foundation that merely acted as a bookkeeper, paying a university medical school facility for services the facility rendered as a public hospital and securing reimbursement from the school for payments to the facility was not the functional equivalent of a governmental agency. Gautreaux v. Internal Medicine Education Foundation, Inc., 336 S.W.3d 526 (Tenn. 2011).

The International Association of Chiefs of Police Inc. was not deemed to be the functional equivalent of Memphis when that city contracted with that organization to assist in the hiring of the next Director of the Memphis Police Department. Memphis Police v. Memphis, 2017 Tenn. App LEXIS 507 (July 26, 2017)

A private company that managed a city sports arena under a contract with a metropolitan government acted as the functional equivalent of that governmental agency, because it assumed responsibility for the day-to-day operation of the arena. Allen v. Day, 213 S.W.3d 244 (Tenn. Ct. App. 2002).

Cases addressing this issue but decided before Cherokee Children & Family Services, and therefore before the 2008 amendment, may be of questionable validity. However, these cases include: Tenant subleases of city-owned property are open records. Creative Restaurants Inc. v. Memphis, 795 S.W.2d 672 (Tenn. Ct. App. 1990) (tenant subleases of city-owned property in the possession of private, for-profit corporations that served as the city's leasing agent were public records under the Act). But see Webber v. Bolling, C.A. No. 177 (Tenn. Ct. App. December 13, 1989) (working papers of certified public accountants retained by Anderson County to conduct an audit of a department of the county government were not subject to disclosure under the Act). The payroll records of a public hospital were held to be open under the Act. Cleveland Newspapers Inc. v. Bradley County Memorial Hospital Board of Directors, 621 S.W.2d 763 (Tenn. Ct. App. 1981), cert. denied, (Tenn. 1981) (holding that only the legislature can designate records confidential and that a hospital created by the state legislature and financed with public funds was an arm of the state carrying on a governmental function). However, employee personnel records of a hospital operated by a nonprofit corporation under a 50-year lease agreement with Shelby County were not subject to the Act. Memphis Publ'g Co. v. Health Care Corp., 799 S.W.2d 225 (Tenn. Ct. App. 1990) (reasoning that hospital that was not created by the general assembly and never claimed governmental immunity from tort actions was a private rather than governmental entity).

Entities that are not governmental bodies are not subject to the Act just because the entity has government officials on its board or in some other capacity. This is one factor, however, courts might consider in determining if the body is the functional equivalent of government.

7. Others

The records of any association or nonprofit corporations established for the benefit of local governmental entities or as a municipal bond financing pool, who receive government funding amounting to at least 30 percent of their income, and who are authorized to allow their employees to participate in the state retirement system are subject to the Act. T.C.A. § 10-7-503(d)(1). See Fodness v. Newport and Cocke County, 2005 Tenn. App. LEXIS 148 (Tenn. Ct. App. Dec. 9, 2004). However, this section of this statute also allows such organization to exempt themselves from the Act if they meet certain criteria.

C. What records are and are not subject to the act?

1. What kinds of records are covered?

All "state, county and municipal records" are public unless otherwise exempted. Broad categories of records legislatively mandated to be excluded from the Public Records Act include medical records of patients in state institutions, investigative files of the Tennessee Bureau of Investigation, records of students in public educational institutions, federal military and state militia records, state attorney general records, and investigative records of the internal affairs division of the department of corrections. T.C.A. § 10-7-504 (1999). Additionally, T.C.A. § 10-7-403 defines and enumerates county records that are public.

2. What physical form of records are covered

Records covered by the Act include “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, sound recordings, or other materials regardless of physical form” made or received pursuant to law or ordinance or in connection with the transaction of official business by a governmental agency. T.C.A. § 10-7-301(6). A records custodian will be required to disclose certain information maintained in a computer database even though it does not maintain the information in the exact format in which the request has been made. The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297 (Tenn. 1998); See Real Estate Search System Inc. v. Baltimore, 8 TAM 5-13 (Tenn. Ct. App. December 27, 1982) ("raw data" in the form of computer printouts are available under the Act).

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

The Act has no provision for allowing the requester to choose a format to receive records except that “the requestor be given the option of receiving information in any format in which it is maintained by the agency, including electronic format.” T.C.A. § 8-4-604(a)(1)(A)(ii)(d). In Wells v. Warton, 2005 WL 3309651 (Tenn. Ct. App. Dec. 7, 2005), the court stated the Act “does not require a custodian of records to provide public records in a manner a citizen requests.” The custodian can chose the manner so long as it does not distort the information or inhibit access. Id. In Lance v. York, 359 S.W. 3d. 197 (Tenn. Ct. App. 2011) the court ruled the custodian was not required to convert requested records from the existing paper format to a scanned electronic format.

b. Can the requester obtain a customized search of computer databases to fit particular needs

The Act has no provision to allow a requester to obtain a customized search of computer databases to accommodate particular needs.

The Supreme Court held that if there is information that is stored on computer but not in the format desired by the requester, the agency is required to provide the information in the format requested. The Tennessean v. Electric Power Board of Nashville, 979 S.W. 2d 297 (Tenn. 1998) (electric power board was required to disclose its customer names, addresses, and telephone numbers as a public record, even though it did not have a list of only that information.). This 1998 decision probably overturns Seaton v. Johnson, 20 TAM 8-20 (Tenn. Ct. App. Jan. 27, 1995) (stating that the Act does not require that state conduct a computer search for a particular type of record).

c. Does the existence of information in electronic format affect its openness?

The existence of information in electronic format does not seem to affect its openness. See T.C.A. § 10-7-121(a)(I)(A) (providing that government records kept on computer or removable computer storage media is available for public inspection, unless it is confidential according to law); T.C.A. § 6-1-126(b)(3) (providing that adoption records maintained by electronic media are confidential and must be secured as such); Op. Att'y Gen. No. 95-01, 20 TAM 6-46 (Jan. 1, 1995) (State Public Records Commission and various county public records commissions have discretion to authorize records to be stored on optical discs and destruction of such records stored in this manner would have to be in accordance with statutory requirement).

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The custodian of public records of convictions of traffic violations or other offenses can charge a reasonable fee per copy to defray the costs of producing and delivering the copy or copies. T.C.A. § 10-7-507 (1995).

However, an electric power board was not permitted to charge a requester for costs, totaling $86,400, incurred in notifying customers about whom information had been requested, as it was required to do in accordance with its own privacy policy. The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297 (Tenn. 1998).

2. Particular fee specifications or provisions

Under T.C.A. § 8-4-604(a), the Office of Open Records Counsel was required to establish a schedule of reasonable charges for copies of Public Records (“Schedule of Charges”), and it has done so. This Schedule of Charges may be found on the Open Records Counsel’s website, www.comptroller.gov/openrecords

The Schedule of Charges allows a “Labor Charge” for “the time reasonably necessary to produce the requested records and includes the time spent locating, retrieving, reviewing, redacting, and reproducing the records.” There is no charge, however, for the first hour of such labor. The charge will be the hourly rate of such public employee involved in the search.

Generally, the Schedule of Charges allows $.15 for black and white copies and $.50 for color copies. Oversized documents will cost more. The records custodian may charge less. Also, the custodian may charge more if it can document its actual cost is higher.

If the requester can identify the records requested with specificity, he need not personally appear to have copies of the records sent to him. Waller v. Bryan, 16 S.W.3d at 773. The Schedule of Charges confirms that the records may be mailed to the requestor.

If records have "commercial value" that requires the reproduction of a computer generated map, the custodians may also charge fees to offset the cost of developing and updating the records. T.C.A. § 10-7-506. This additional cost might not apply if the requestor is the news media. T.C.A. § 10-7-506(c)(1) & (c)(4).

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

None. Other than to participate in any open records litigation where the constitutionality of any statute is challenged, or to represent the State when it (as opposed to local government) is the records custodian.

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

Records exempted by the Tennessee Open Records Act itself are specific and are listed in 48 categories that deal with confidential records.

The withholding of these records is not generally left to the discretion of the custodian; rather, the withholding is mandated unless otherwise indicated.

The Tennessee Open Records Act has little resemblance to the federal Freedom of Information Act. See Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007) (court noted differences and refused to apply FOIA exemption rationale to state Act).

2. Discussion of each exemption

a. The medical records of patients in state institutions, including those containing the source of organ donations for transplantation and information concerning organ donors, T.C.A. § 10-7-504(a)(1);

b. All investigative records of the Tennessee Bureau of Investigation and all criminal investigative files of the motor vehicle division of the department of safety, T.C.A. § 10-7-504(a)(2). See Abernathy v. Whitley, 838 S.W.2d 211 (Tenn. Ct. App. 1992) (court of appeals upheld denial that particular parts of records constitute investigation records of the Tennessee Bureau of Investigation);

c. Records of the military department involving national or state security, including national guard personnel records and staff studies and investigations, T.C.A. § 10-7-504(a)(3);

d. The academic, financial, and medical or psychological records of students in public educational institutions, T.C.A. § 10-7-504(a)(4);

e. Books, records, and other materials in the possession of the attorney general's office relating to any pending or contemplated legal or administrative proceeding in which the office may be involved, including (1) records designated confidential or privileged by state law, (2) records related to federal investigations and designated confidential or privileged under federal law, (3) the work product of the attorney general or his subordinates, (4) communications to or by the attorney general covered by the attorney-client privilege, and (5) records available for public inspection in other departments and agencies, T.C.A. § 10-7-504(a)(5);

f. Agency records containing opinions of the value of real and personal property intended to be acquired for public purposes, until acquisition is complete, T.C.A. § 10-7-504(a)(6);

g. Sealed bids for the purchase of goods and services and leases of real property, until completion of evaluation, T.C.A. § 10-7-504(a)(7);

h. All investigative records and reports of the internal affairs division of the department of corrections or department of youth development, T.C.A. § 10-7-504(a)(8);

i. Official health certificates obtained and maintained by the state veterinarian, T.C.A. § 10-7-504(a)(9);

k. Records of historical research value given or sold to public archival institutions or libraries when the owner or donor of such records wishes to place restrictions on access to the records, T.C.A. § 10-7-504(a)(11);

o. A utility department's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence, T.C.A. § 10-7-504(a)(15);

p. A governmental entity's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence, T.C.A. § 10-7-504(a)(16);

q. The telephone number, address and any other information which might be used to locate the whereabouts of a domestic violence shelter or rape crisis center, T.C.A. § 10-7-504(a)(17);

v. the audit working papers of the comptroller of the treasury and state, county, and local government internal audit staffs. T.C.A § 10-7-504(a)(22).

w. Records containing the results of individual teacher evaluations administered by the State Board of Education, T.C.A. § 10-7-504(a)(23).

x. Commercial and financial information provided to the Alcoholic Beverage Commission that would give competitors an advantage over those who do not know or use such information, T.C.A. § 10-7-504(a)(24).

y. Records related to a student’s academic performance, financial status, medical or psychological treatment, and family information maintained by a voluntary association for interscholastic sports competition of private and public secondary schools, T.C.A. § 10-7-504(a)(25).

z. Job performance evaluations of employees in the Department of the Treasury, Secretary of State, public institutions of higher education, and the Comptroller’s Office, T.C.A. § 10-7-504(a)(26).

bb. Proposals and statements of qualifications received by local government entities in response to a personal service, professional service, or consultant service request for proposals, T.C.A. § 10-7-504(a)(28).

hh. Identifying information about someone who "has been or may in the future be directly involved in the process of executing a sentence of death," T.C.A. § 10-7-504(h);

ii. Information that would allow a person to obtain unauthorized access to confidential information or government property, including electronic information processing systems T.C.A. § 10-7-504(i).

jj. Identifying information of anyone who has requested the department of correction or the department of probation and parole to provide information regarding the status of a criminal proceeding or a convicted felon, T.C.A. § 10-7-504(j).

qq. Certain information related to victims of sexual assault after the defendant has been convicted and sentenced. T.C.A. § 10-7-504(q) However, in The Tennessean v. Metropolitan Gov’t of Nashville, 485 SW 3d 857 (Tenn 2016), the court indicated this protection would also apply during the pendency of the criminal proceedings.

ss. Records of motor vehicle insurance verification held by the Department of Revenue, Department of Safety, Department of Commerce and Insurance, Law Enforcement and the Judiciary. T.C.A. § 10-7-504(s)

B. Other statutory exclusions

In addition to the exemptions provided in the Act itself, more than 300 other statutes and court rules designate certain records confidential. In order to override the Act, the legislature must enact a statute that exempts the material. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 514 (Tenn. 1986) (holding that neither the expungement statute nor Rule 16(a)(2) of Tenn. R. Crim. P. was authority for denying access to closed police investigative files). But see Appman v. Worthington, 746 S.W.2d 165 (Tenn. 1986) (Tenn. R. Crim. P. 16(a)(2) was sufficient to deny access to investigative files while investigation was in progress).

The Work Product Doctrine, Rule 26.02(3) of the Tennessee Rules of Civil Procedure, protects certain documents and papers prepared by an attorney in anticipation of litigation or in preparation for trial. This doctrine extends to reports or investigations made by, or on behalf of any party, where such documents have been prepared in anticipation of litigation or in preparation for trial. Cf. Arnold v. City of Chattanooga, 19 S.W.3d 779 (Tenn. Ct. App. 1999) (City waived work product protection for a report prepared by city attorney by making the report a focal point at two public meetings). The fact that a document may have been created before a complaint was actually filed does not exempt it from the scope of the work product doctrine. Id. The possibility of avoiding litigation would not render the document any less "work product" created in anticipation of litigation than if the suit had already been filed. An attorney and client should not be disadvantaged simply because they were hoping to settle a case without filing a suit. Id. Documents considered work product may be protected from discovery under the Public Records Act. However, the holder of the documents may waive their confidentiality. One way confidentiality may be waived is if the party uses the documents to further its cause offensively, as a "sword," and also asserts the benefit of privilege as a "shield." Id. See also Coats v. Smyrna/Rutherford County Airport, 2001 Tenn. App. LEXIS 911 (Tenn. App. Dec. 13, 2001) (records concerning a lien on airport property were not protected by attorney client privilege or work product doctrine.)

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The Act has been construed as precluding courts from exempting records from public inspection. Memphis Publishing Co. v. Holt, 710 S.W.2d 513, 517 (Tenn. 1986). Arguably, however, the 1991 amendment to the statute now allows exemptions based upon common law. In Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn. 2007), however, the Supreme Court refused to recognize a “law enforcement privilege” as a part of Tennessee’s common law. Therefore, such records of local police departments are not exempt.

Several provisions close such records (especially health care provider disciplinary boards), but make no distinction between open and closed investigations. T.C.A. § 63-1-117. Also, records of TennCare investigations of fraud and abuse are confidential. T.C.A. § 71-5-2516. Unlike criminal prosecutions, there appears to be no distinction between open and closed investigations.

C. Bank records

Many such records are generally closed. See generally T.C.A. § 45-2-103(a)(3)(C) (information obtained by the Commissioner of Financial Institutions when acting upon application for change of control of a bank is confidential); T.C.A. §§ 45-2-1603(a), 45-2-1713 (criminal penalty for disclosure of conditions of bank), 45-3-814, 45-7-225 (information obtained by bank examiner when examining the affairs of a bank or savings and loan is confidential); T.C.A. § 45-2-1717 (violations of banking laws reported by Commissioner of Department of Financial Institutions are confidential even when transmitted to district attorney); T.C.A. §§ 45-3-807, 45-3-814, 45-3-1308 (savings and loan associations may decline to disclose their records except under certain circumstances); T.C.A. § 45-7-117 (reports of investigation and examination conducted by Commissioner of Financial Institutions on issuers of money orders are confidential); T.C.A. § 45-7-216 (information contained in examinations, reports, applications, credit, investments, financial statements, and balance sheets is confidential). See also, T.C.A. § 10-7-504(r)

D. Budgets

E. Business records, financial data, trade secrets

Some such records are closed. See T.C.A. §§ 4-3-712 et seq. (proprietary information acquired by the Department of Economic and Community Development is confidential; T.C.A § 13-27-113 (information submitted to or compiled by the Tennessee Competitive Export Corporation pertaining to commercially sensitive information is confidential); T.C.A. § 45-7-216 (information contained in examinations, reports, applications, credit, investments, financial statements, and balance sheets is confidential); T.C.A. § 49-7-120 (trade secrets, patentable information, proprietary information, and commercial or financial information used in research done at state colleges and universities are closed); T.C.A. § 50-3-504, 914 (trade secrets or other privileged information disclosed to or obtained by the Department of Labor pursuant to enforcement of occupational safety and health laws are closed); T.C.A. § 50-3-2013 (information containing or revealing trade secrets obtained by the Commissioner of Labor while enforcing the Hazardous Chemical Right to Know Law is closed). However, the name and address of an owner of a business tax license on deposit with the county clerk is public record. T.C.A. § 67-1-1707(f).

A request for the identities of all licensed tobacco wholesale distributors in the state was denied because it would have resulted in disclosure of tax return information, as defined by T.C.A. § 67-1-1702. McLane v. State, 115 S.W.3d 925 (Tenn. Ct. App. 2002).

I. Election Records

In Chattanooga Publ'g Co. v. Hamilton County, 2003 Tenn. App. LEXIS 767 (Tenn. Ct. App. May 8, 2003) the court granted a request for records of registered voters and a list of all persons who voted in a Democratic primary despite the fact that these records had been delivered to the Tennessee Bureau of Investigation after the request had been made. To hold otherwise, the court ruled would allow a records custodian to avoid the requirements of the Act by merely sending the records to the TBI, which does have an exemption for its records.

Voting results are presumably open, but see T.C.A. § 2-11-202(a)(5) (reports of election law violation investigation conducted by the Coordinator of Elections are closed).

L. Homeland security and anti-terrorism measures

In 2002 the General Assembly amended the Act to address Homeland Security issues. T.C.A. § 10-7-504(a)(21). Generally, plans of a governmental entity for response to violence or terrorist activities are confidential, as are records exposing a structural or operational vulnerability of a utility service provider. See also T.C.A. § 10-7-503(e) (concerning terrorists incidents and weapons of mass destruction).

M. Hospital reports

Generally closed. See T.C.A. § 68-11-304(c). See also T.C.A. § 68-11-210(a)(5)(C) (Joint Commission on Accreditation of Hospital's report concerning the accreditation of a hospital or nursing home is closed); T.C.A. § 68-29-107 (reports made by medical laboratories to the Commissioner of Health and Environment concerning infectious diseases are closed); T.C.A. § 68-30-111 (sources of body parts for transplantation are confidential); T.C.A. § 10-7-504(a)(1) (medical records of patients in state hospitals or medical facilities or receiving medical treatment at state expense are confidential). Konvalinka v. Chattanooga-Hamilton County Hospital Authority, 358 S.W. 3d. 213 (Tenn. Ct. App. 2010) (minutes of hospital’s Compliance Committee related to settlement with federal government on Medicare payments were public).

N. Personnel records

Open. See T.C.A. §§ 10-7-503(a) and (c)(1). There is an exception for undercover police officers. But this exemption is not to be construed as a general closure of personnel files of all police officers. Henderson v. Chattanooga, 133 S.W.3d 192 (Tenn. Ct. App. 2003) (allowing access to officers' photographs), But see Contemporary Media v. Giles, 30 Med. L. Rptr. 2149 (Tenn. Ct. App. June 3, 2002) (denying access to photos of all newly hired deputy sheriffs).

Based on a case from the U.S. Court of Appeals for the Sixth Circuit, Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the Attorney General stated that § 10-7-503(c) of the Open Records Act, which requires custodians of law enforcement personnel information to allow the public to inspect it, but to obtain information regarding the person making the request for information and to notify the officer whose records have been inspected within three days, may not comply with the due process requirements of the U.S. Constitution in certain situations. This requirement applies where the custodian knows or should know that release of information could potentially threaten the personal security of a law enforcement officer. In those circumstances, the officer must receive prior notice and an opportunity to be heard. Op. Att'y Gen. No. 98-230 (December 10, 1998). In response to Kallstrom, the exception for undercover officer was created, as explained in Henderson.

1. Salary

2. Disciplinary records

The State’s investigation of a harassment claim against one of its employees was protected from disclosure under the attorney client privilege or work product doctrine. The Tennessean v. Tenn. Dept. of Personnel, 2007 Tenn. App LEXIS 267 (Tenn. Ct. App. 2007).

6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

1. Accident reports

Generally open with limitations on how that information might be used. T.C.A. § 55-10-108(f). The Office of Open Records Counsel has opined that if the information on the report was obtained from the state Department of Safety then it would be protected from disclosure under the federal Drivers Privacy Protection Act and the state counterpart, the Uniform Motor Vehicle Records Disclosure Act. T.C.A. § 55-25-101; Office of Open Records Opinions of March 6, 2009 and May 10, 2010.

2. Police blotter

3. 911 tapes

4. Investigatory records

Records related to active investigations are closed. Tenn. R. Crim. P. 16(a)(2). This closure applies to not only records created by law enforcement, but also records of third parties gathered by law enforcement. The Tennessean v. Metro Govt’t of Nashville, 485 S.W. 3d 857 (Tenn. 2016).

11. Mugshots

12. Sex offender records

13. Emergency medical services records

14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

Access to such records held by a private company housing state prisoners is the same access as if prisoner was housed by the state under T.C.A. § 41-24-117, which is a part of Private Prison Contracting Act. Friedmann v. Corrections Corp. of America, 310 S.W.3d 366 (Tenn. Ct. App. 2009).

3. Death certificates

4. Infectious disease and health epidemics

IV. Procedure for obtaining records

Pursuant to T.C.A. 10-7-503(g), every governmental entity in Tennessee subject to the Act was required to establish a written public records policy no later than July 1, 2017. The Office of Open Records Counsel developed a model policy that many governmental entities have followed. Any requestor should first review the entity’s policy before making a request. These policies addressed many of the procedures for requesting records and often contain a suggested form for requesting records. An entity may not adopt a policy that is more restrictive than the Act.

A. How to start

1. Who receives a request?

Requests for the right of personal inspection should be addressed to the official and/or designee of the official in charge of the records. If the request is not submitted to the office that is the records custodian, in a latter lawsuit to obtain the records, a court will not have jurisdiction to hear the case State v. Odom, 2007 Tenn. Crim. App. LEXIS 305 (Tenn. Crim. App. April 13, 2007).

2. Does the law cover oral requests?

The Act does not require requests to inspect records to be in writing. Wells v. Wharton, 2005 WL3309651 (Tenn. Ct. App. Dec. 7, 2005). Requests can be oral, during business hours. A request made by either email or phone is sufficient. The custodian may not require that the request be delivered in person or by U.S. Mail. Jakes v. Sumner City Bd. of Educ. 2017 Tenn. App LEXIS 515 (July 28, 2017); T.C.A. § 10-7-503(a)(7)(A)

There is no specified procedure to follow if an oral request is denied, however, a written request would be beneficial to further the request or establish facts for judicial review.

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

The custodian is obligated to make the records available “promptly,” and if they are not made available promptly the custodian has seven business days to: 1) Make the records available; 2) Deny the request in writing, or; 3) State in writing the time it will need to produce the records. T.C.A. § 10-7-503(a)(2)(B). Some custodians have incorrectly believed that this seven day limit defines “promptly,” however, if records are not produced until seven days, that is not prompt. Jetmore v. Metro Gov’t of Nashville 2017 Tenn. App. LEXIS 688 (Tenn. Ct. App Oct. 12, 2017) (practice of providing only three records promptly and, as a matter of policy, only producing others much later was a willful violation of the Act)

3. Pro se

4. Issues the court will address

The courts are directed to address the issue of denial of access. T.C.A. § 10-7-505(b). See Quillen v. Crocket, 20 TAM 22-22 (Tenn. Ct. App. May 20, 1995) (Court reversed a dismissal of case in which the respondent failed to provide petitioner with all information in criminal action).

c. Delays

d. Patterns for future access (declaratory judgment)

5. Pleading format

The Act denominates a pleading to obtain access to records as a petition. The petitioner should allege Tennessee citizenship. T.C.A. § 10-7-505(a). After the individual has filed a petition with the proper court, that court shall "issue an order requiring the defendant or respondent party or parties to immediately appear to show cause . . . why the petition should not be granted." T.C.A. § 10-7-505(b). In the interest of expeditious hearings, a formal written response to the petition is not required, and the generally applicable periods of filing such responses do not apply. T.C.A. § 10-7-505(b). The party in charge of keeping the records bears the burden of proving, by a preponderance of the evidence, that the records sought are exempted from the Act or that there is some other justification for non-disclosure. T.C.A. § 10-7-505(c).

6. Time limit for filing suit

The Act provides no time limit for filing suit. See Konvalinka v. Chattanooga – Hamilton County Hospital Authority, 2006 Tenn. App. LEXIS 600 (Tenn. Ct. App. Sept. 11, 2006) (noting absence of limitations period merely requires the requestor to make another request). A six-year statute of limitations for malfeasance and nonfeasance of public officials may be applicable. T.C.A. § 28-3-109. Presumably, however, a new cause of action could accrue with each request.

7. What court?

The petition should be filed in either the chancery or circuit court of the county in which the records are located. If the records are state records kept by a state department or agency, an individual may petition the courts of Davidson County (Nashville), the courts of the county where the records are kept, or the courts of the county of the petitioner's residence to obtain access. T.C.A. § 10-7-505(b). The Tennessee Supreme Court has recently confirmed that when seeking email integrated records, the requestor need not present his claim to the criminal court handling the underlying case. The Tennessean v. Metro Gov’t of Nashville 485 S.W. 3d 857 (Tenn 2016). But see Alcorn v. State, 20 TAM 52-59 (Tenn. Ct. App. Nov. 29, 1995) (holding that criminal court was proper place to petition for transcripts of voir dire held in that court).

The "knowing and willfully" standard is synonymous with "bad faith." See Black's Law Dictionary 127 (5th ed. 1979); Greer v. City of Memphis, 356 S.W. 3d. 917 (Tenn. Ct.App. 2010); Contemporary Media Inc. v. City of Memphis, 1999 Tenn. App. LEXIS 298. In one case, a city's refusal to disclose certain documents claiming that it was bound by a court order declaring confidentiality (such a defense was flawed since only the legislature can declare records to be confidential) was considered willful refusal to disclose, and therefore, attorney fees were awarded. Contemporary Media Inc. v. City of Memphis, 1999 Tenn. App. LEXIS 298. In another case, the court did not assess attorney fees because the city did not know that confidentiality of certain documents had been waived by its actions, and that the documents in question had become public record. Arnold v. City of Chattanooga, 19 S.W.3d 779. Attorney’s fees were appropriate where a city filed a lawsuit to obtain an ex parte protective order to keep confidential a settlement agreement between the city and the widow of a police shooting victim. Tennessean v. Lebanon, 32 Med. L. Rptr. 2304 (Tenn. Ct. App. Feb. 13, 2004) (court found no basis for city's refusal to provide settlement agreement).

In 2008 the statute was amended to state, “In determining whether the action was willful, the court may consider any guidance provided to the records custodian by the Office of Open Records Counsel.” T.C.A. § 10-7-505(g). Presumably, a court would likely find a refusal to grant access to the records willful if the Open Records Counsel had told the custodian to grant access and the custodian failed to follow that advice.

In Friedman v. Marshall County, 2015 WL 4772825 (Tenn. Ct. App. June 24, 2015) the court ruled “that a heightened showing of ‘ill will’ or ‘dishonest purpose’ is not necessary in order to establish willfulness under the statute”; Taylor v. Town of Lynnville, 2017 Tenn. App. LEXIS 469 (July 13, 2017) (a finding of willfulness does not automatically require an award of attorney’s fees, but refusing to allow an inspection unless the requestor pays a search and/or copying fee is a willful refusal because no such fee may be charged for merely inspecting records).

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

2. Time limits for filing appeals

The time limit for filing an appeal is within 30 days after the date of entry of the final judgment. Tenn. R. App. P. 4(a). Appeals must be made pursuant to the Tennessee Rules of Appellate Procedure, which make no distinctions for open records cases. Appeal as of right would be to the Tennessee Court of Appeals. Thereafter, permissive appeal may be made to the Tennessee Supreme Court within 60 days after the Court of Appeals' decision.

3. Contact of interested amici

Interested amici can apprise themselves of Open Record issues that might appear before the Tennessee Supreme Court by reviewing the decisions of the Tennessee Court of Appeals. The Tennessee appellate courts have a Web site (www.tsc.state.tn.us) on which recently released opinions are available.

The Reporters Committee for Freedom of the Press has filed amicus briefs in cases involving significant media law issues before Tennessee's highest court. Also, the Tennessee Press Association, the Tennessee Association of Broadcasters, and the Tennessee Coalition For Open Government and other organizations have participated as amici on open records cases.

G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

The Tennessee Open Meetings Law (the "Act") requires that all meetings of any governing body be open to the public at all times, except as provided by the Tennessee Constitution. The Open Meetings Act does not prescribe when governing bodies must conduct meetings. Instead, it defines when meetings must be open to the public. Griffin v. Traughber, 1996 Tenn. App. LEXIS 382, * 15.

A. Who may attend?

B. What governments are subject to the law?

All governing bodies — state, county, and local — are required to hold open meetings. See T.C.A. § 8-44-102(a); City of Hendersonville v. City of Goodlettsville, 19 TAM 32-5 (Tenn. Ct. App. July 13, 1994) (City violated Act by not conducting public meeting, but the purpose of the Act was served when the decision to purchase property was ratified at a public meeting).

1. State

2. County

County governing bodies are subject to the law. A county economic development oversight committee, a non-profit corporation created by county and municipal resolutions to promote economic development was subject to the provisions of both the Open Records and Open Meetings Acts because the committee performed a governmental function, received a substantial amount of taxpayer funding, and was significantly involved with and regulated by the governing city and county legislative bodies. Wood v. Jefferson County Econ. Dev. Oversight Comm., Inc. 2007 Tenn. App. LEXIS 643 (Sep. 26, 2017). County election commissions are subject to the Act because they are created under the state Election Code, which provides that the meetings of such boards and commissions are open to the public and subject to the Act. McFarland v. Pemberton, 530 S.W. 3d 76 (Tenn. 2017).

3. Local or municipal

C. What bodies are covered by the law?

The Act applies to any member of any governing body. "Governing body" is defined as "members of any public body which consists of two (2) or more members, with the authority to make decisions for or recommendations to a public body on policy or administration and also means a community action agency which administers community action programs under the provisions of 42 U.S.C. § 2790." T.C.A. § 8-44-102(b). Specifically excluded from the ambit of "governing body" are administrative officers who do not formulate policies for a governing body. Fain v. Faculty of the College of Law of the University of Tennessee, 552 S.W.2d 752 (Tenn. Ct. App. 1977) (holding that law school dean was not a governing body and faculty and committee meetings of law school were not subject to the Act); Mid-South Publishing Co. v. The Tennessee State University, 1990 WL 207410 (Tenn. Ct. App. 1990) (holding that university chancellor was not governing body and that his meetings with advisory committee were not subject to the Act).

The Act does not define the term "member." According to an Attorney General opinion, an individual becomes a member of a governing body when he or she has completed all the requirements necessary to qualify to perform the official duties of a member and his or her term of office has begun. Op. Att'y Gen. No. 99-043 (Feb. 25, 1998). More specifically, in the case of an elected official, the electee is not qualified to serve until his or her term has begun and he or she has taken the oath of office. Id. (holding that meetings of the Memphis Center City Development Corporation are subject to the Act). A governing body also specifically includes any nonprofit corporation authorized by state law to act on behalf of any local government other than Nashville for the purpose of Resource Recovery and Solid Waste Disposal or Energy Production Facilities. T.C.A. § 8-44-102(b)(1)(C).

Also, the Act provides that it applies to the board of directors of any non-profit corporation that provides Nashville with heat, steam or incineration of refuse, T.C.A. § 8-44-102(b)(1)(D), or the board of directors of any non-profit corporation or association authorized to obtain coverage for government employees in the Tennessee consolidated retirement system. T.C.A. § 8-44-102(b)(1)(E).

1. Executive branch agencies

a. What officials are covered?

The term governing body has been construed to include "any board, commission, committee, agency, authority or any other body, by whatever name, whose origin and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector." Dorrier v. Dark, 537 S.W.2d at 892. The Act applies to administrative agency proceedings. L. Harold Levinson, Contested Cases Under the Tennessee Uniform Procedures Act, 6 Mem. St. U. L. Rev. 215, 234 (1976).

b. Are certain executive functions covered?

The Governor’s Commission for Judicial Appointments for Purposes of Filling Vacancies in the Trial and Appellate Courts in Tennessee is exempt because the Act states that it “shall not apply to … the governor." Durham v. Haslam, 2016 Tenn. App. LEIX 236 (Oct. 20, 2016)

c. Are only certain agencies subject to the act?

2. Legislative bodies

Covered by the Act. Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976). However, a single legislator's presence does not convert an otherwise private meeting of an interest group in a public facility into a public meeting under the Act. Op. Att'y. Gen. No. 02-131 (Dec. 12, 2002).

3. Courts

It does not seem that a court would be a public body or a governing body as those terms are used in the Act. Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976). Access to courts in Tennessee is governed by the state and U.S. Constitutions. Tennessee v. Drake, 701 S.W.2d 604 (1985).

4. Nongovernmental bodies receiving public funds or benefits

The board of directors of any non-profit corporation that contracts with a state agency to receive community grant funds that comprise at least 30 percent of the corporation's annual income are "governing bodies" under the Act. However, such board of directors meetings are exempt from the Act if called "solely to discuss matters involving confidential doctor-patient relationships, personnel matters or matters required to be kept confidential by federal or state [laws or regulations]." T.C.A. § 8-44-102(B).

6. Multi-state or regional bodies

7. Advisory boards and commissions, quasi-governmental entities

Covered by the Act. Forbes v. Wilson County Emergency Communications Dist., 966 S.W.2d 417 (Tenn. 1998) (Personnel Policy Committee of County Emergency Communications District 911 Board was subject to Act); See Richard L. Hollow & Rudolph L. Ennis, Tennessee Sunshine: The People's Business Goes Public, 42 Tenn. L. Rev. 527, 538 (1975) (citing legislative history that gives a broad reading to the term "public body" but does not indicate any specific bodies); see also Op. Att'y Gen. No. 94-77, 19 TAM 31-29 (July 8, 1994) (partisan caucuses given authority to make recommendations to or decisions for county legislative bodies are subject to Open Meetings Act); but see Perdue v. Quorum Health Resources Inc., 934 F. Supp. 919 (M.D. Tenn. 1966) (no violation of act where City Hospital Board of Trustees did not meet to consider termination of employee of a private company that provided management services to the hospital).

8. Other bodies to which governmental or public functions are delegated

Covered by the Act. T.C.A. § 8-44-102(b) (1995). See also Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976) (involving local board of education); Metropolitan Air Research Testing Authority Inc. v. Metropolitan Gov't of Nashville, 17 TAM 31-12 (Tenn. Ct. App. July 8, 1992) (questioning what is a governing body); Op. Att'y Gen. No. 94-94, 19 TAM 39-55 (Aug. 30, 1994) (governing body may be a partisan caucus if the county legislative body gives them authority to make decisions, but not as to informal caucuses). The board of directors of a preferred provider organization that contracts with insurance companies and employers and provides contracting third-party payers with a network of physicians is considered a governmental body because the organization is a non-profit, public benefit organization which acts on behalf of and is, in essence, a division or subsidiary of the county hospital district that created it. Souders v. Health Partners Inc., 997 S.W.2d 140 (Tenn. Ct. App. 1998). A high school assembly called by a principal to address the faculty and student body is not a meeting of a government body subject to the Open Meetings Act. Op. Att'y Gen. No. 99-128 (June 18, 1999).

The board of directors of a "City Development Corporation" was subject to the Open Meetings Act because it satisfied the definition of a governing body under Dorrier by engaging in various activities related to public development and acting on behalf of the city. Op. Att'y Gen. No. 99-043 (Feb. 25, 1999). Members of the board of a rural electric cooperative operating under T.C.A. §§ 65-25-201 are not subject to the Act. Op. Att'y Gen. No. 97-154 (November 10, 1997). An "Economic Development Council," a nonprofit corporation organized by a County Commission and whose members are authorized to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector, is subject to the Act. Op. Att'y Gen. No. 99-012 (January 25, 1999). Meetings of the commissioners of a county airport authority and meetings of the airport authority advisory board are subject to the Act. Op. Att'y Gen. No. 96-131 (November 14, 1996).

9. Appointed as well as elected bodies

D. What constitutes a meeting subject to the law

The Act defines meeting as "the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter." T.C.A. § 8-44-102(C)(2).

a. "Information gathering" and "fact-finding" sessions

b. Deliberation toward decisions

The Act covers meetings to deliberate toward a decision on any matter. The Act, however, does not require the members of the public body to verbalize or discuss a matter before a vote. Baltrip v. Norris, 23 S.W.3d 336, 341 (Tenn. Ct. App. 2000). Chance meetings of two (2) or more members of a public body are not to be considered meetings, but such chance meetings, informal gatherings, or electronic communications cannot be used to circumvent the spirit or requirement of the Act. T.C.A. § 8-44-102(c)(1995). This subsection of the Act has been construed not to bar separate solicitations of commission members' votes by one who wished an appointment to the commission. Jackson v. Hensley, 715 S.W.2d 605 (Tenn. Ct. App. 1986) (holding that no statutory meeting occurred until the commission met to elect the new trustee). However, the Act was violated when three of five councilmen discussed and agreed to an item in advance of a city council meeting. Op. Att'y Gen. No. 83-033 (Jan. 24, 1983). However, the Attorney General has opined that an exit conference between the State Comptroller and members of a governing body which was conducted for the limited purpose of imparting information to local government officials, with the officials not deliberating toward or making a decision, was not subject to the Act. Op. Att'y Gen. No. 99-090 (April 12, 1999). Job interviews conducted by a county airport committee are considered meetings because they clearly involve deliberation toward employment decisions. Op. Att'y Gen. No. 96-040 (March 12, 1996).

3. Electronic meetings

a. Conference calls and video/Internet conferencing

Under T.C.A. § 8-44-108, participants in a meeting may use electronic or other communications as long as every participant is capable of simultaneously hearing the other members of the meeting and it is possible to speak among the participants throughout the meeting. Further, if a physical quorum is not present at the meeting, the governing body must make a finding of "necessity" for electronic participation. Id. This statute, by its terms, applies only to state government, and not to local government or to the state university board of regents or board of trustees. Op. Att'y Gen. No. 99-152 (Jan. 24, 1983). Also, each part of the meeting required to be open to the public must be audible to the public at the location specified in the notice of the meeting. A 2017 amendment loosened these restrictions for an emergency communications district board of directors meeting. T.C.A. § 8-44-108(d)

b. E-mail

Under T.C.A. § 8-44-109, a governing body may allow members to communicate by means of a forum over the Internet if this forum is at all times available to the public (other than for reasons of technical maintenance or unforeseeable technical limitations). Such postings on a forum shall not be a substitute to decision making by a governing body in a meeting held under the Act. Unless the provisions of this section are followed, emails between members of a governing body will violate the Act. Johnston v. Metro Gov’t of Nashville and Davidson County, 2009 Tenn. App. LEXIS 832 (Tenn. Ct. App. Dec. 10, 2009) (emails discussing proposed zoning changes violated Act.)

1. Regular meetings

a. Definition

b. Notice

Governing bodies are required to give adequate public notice of all meetings. T.C.A. § 8-44-103(a). See Kinser v. Town of Oliver Springs, 19 TAM 9-16 (Tenn. Ct. App. Feb. 10, 1994) (holding that notice of city council meeting posted inside City Hall "where everybody pays their water bill" and over entrance to police department "where people come to pay their tickets" was adequate because the meeting concerned a police personnel matter); Neese v. Paris Sch. Dist., 813 S.W.2d 432 (Tenn. 1990) (notice was inadequate); Hillsboro West End Neighborhood Ass'n Inc. v. Metro. Bd. of Zoning Appeals, 20 TAM 12-17 (Tenn. Ct. App. Feb. 24, 1995) (reasoning that notice of conditional permit being sought was sufficient when placed in newspapers and mailed to property owners). In Englewood Citizens For Alternate B v. The Town of Englewood, 1999 Tenn. App. LEXIS 406, the court set forth a three-prong test. To qualify as adequate public notice, the notice given must: (1) be posted in a location where a member of the community could become aware of such a notice; (2) reasonably describe the purpose of the meeting or the action proposed to be taken; (3) be posted at a time sufficiently in advance of the actual meeting in order to give citizens both an opportunity to become aware of and attend the meeting. Failure to specifically state in the notice every issue to be discussed in a meeting does not necessarily make notice inadequate when the meeting has several purposes. Souder v. Health Partners, Inc., 997 S.W.2d 140, 149-50 (Tenn. Ct. App. 1998).

There is no specified time limit for notice. Notice need only be "public notice." Notice must be "adequate public notice." See Franklin County v. The Town of Monteagle, 2001 Tenn. App. LEXIS 379 (Tenn. Ct. App. May 23, 2001) (publication of notice of regular meeting in local monthly newsletter and publication of two notices in newspaper of general circulation with time and place of meeting was adequate notice.)

Merely because there is "one passing comment" about the substance of a particular issue, with further discussion of the procedural or evidentiary matters related to the issue, with no decision regarding the ultimate disposition of the issue, there was no violation of the notice requirement of the Act when that issue had not been placed on the meeting agenda. Dunn v. Knox County, 2005 Tenn. App. LEXIS 254 (Tenn. Ct. App. Dec. 8, 2004). A "misleading notice is not adequate public notice." Englewood Citizens v. Town of Englewood, 1999 Tenn. App. LEXIS 406 (Tenn. Ct. App. June 24, 1999) (holding that agenda item identified as only "Letter to State concerning Hwy 411," was too cryptic to be adequate notice). The penalties and remedies for failure to give adequate notice are the same as for other violations of the law.

c. Minutes

The Act mandates that minutes of a governmental body's meetings be promptly and fully recorded. Furthermore, all votes must be by public vote or public ballot or public roll call with no secret votes, ballots, or roll calls allowed. T.C.A. § 8-44-104 (1995). Failure to include an account of the vote in the minutes from a meeting in accordance with the Act might not necessarily render action taken at the meeting void but might result in the imposition of other sanctions in accordance with § 8-44-106(c) and (d). Zseltvay v. Metropolitan Government of Nashville and Davidson County, 986 S.W. 2d 581 (Tenn. Ct. App. 1998). But see Allen v. City of Memphis, 2004 Tenn. App. LEXIS 403 (Jan. 22, 2004) (holding that failure to record minutes could void action taken at meeting). "Strict compliance with [the Act] is necessary with respect to the matters required to be recorded and included in the minutes . . . . The Act does not distinguish between technical and substantive violations." Grace Fellowship Church v. Lenoir City, 2002 Tenn. App. LEXIS 49 (Tenn. Ct. App. Jun 23, 2002) (quoting Zseltray).

Minutes shall include a record of persons present, motions, proposals, and resolutions made, results of votes taken and individual votes cast. The Act requires that meetings be "fully recorded" but does not require that the minutes be "complete and exact" Hutsell v. Jefferson County, 2005 Tenn. App. LEXIS 243 (Tenn. Ct. App. Feb. 15, 2005) (noting that the Act does not require recording by audio or video means). A failure to record minutes of a meeting constitutes a violation of the Act. Allen v. City of Memphis, 397 S.W. 3d 572 (Tenn. Ct. App. 2012). The minutes are public records.

2. Special or emergency meetings

a. Definition

b. Notice requirements

Any governmental body that holds a special meeting "shall give adequate public notice of such meeting." T.C.A. § 8-44-103(b) (1995). "Adequate public notice means adequate public notice based on the totality of the circumstances as would fairly inform the public. . . ." Memphis Publishing Co. v. City of Memphis, 513 S.W.2d 511, 513 (Tenn. 1974). Notice of a special meeting need not be published in a local newspaper to be adequate. State ex rel. Moser v. Brewer, No. 85-335-II (Tenn. Ct. App. Mar. 26, 1986) (holding that notices posted on bulletin boards of nursing home, hospital, and county court house and radio broadcast of the meeting were adequate). See Rock Abou-Sakher v. Humphreys County, 955 S.W. 2d 65 (Tenn. Ct. App. 1997) (notice of meeting of airport authority for 4:00 p.m. in one member's office was invalid when the meeting was actually held at 4:30 in the courthouse annex). The notice requirements of the Act are in addition to, and not in substitution of, any other notice required by law. T.C.A. § 8-44-103(c).

The Act does not provide specific time limits for the giving of notice for meetings, but under case law, the notice must be posted at a time sufficiently in advance of the actual meeting in order to give citizens both an opportunity to become aware of and attend the meeting. See Englewood Citizens 1999 Tenn. App. LEXIS 406, * 12 (two days’ notice was not considered sufficient).

The Act does not specify to whom notice of a special meeting must be made, other than the "public." T.C.A. § 8-44-103(b).

The Act does not specify where notice of a special meeting must be posted. But see State ex rel. Moser v. Brewer, No. 85-385-II (Tenn. Ct. App. Mar. 26, 1986). According to case law, notice must be posted in a location where a member of the community could become aware of such a notice. Englewood, 1999 Tenn. App. LEXIS 406.

The Act does not require that notice of a public meeting include an agenda, but the notice must describe the purpose of meeting or the proposed action. Id.

The Act contains no special penalties for failure to give proper notice; however, the Act generally states that any action taken at a meeting in violation of the Act shall be null and void and of no effect. T.C.A. § 8-44-105 (1995).

c. Minutes

The same requirement that minutes be recorded for regular meetings applies to special meetings. T.C.A. § 8-44-104. Minutes shall include a record of persons present, motions, proposals, and resolutions made, results of votes taken and individual votes cast.

a. Definition

b. Notice requirements

Any executive session must be provided in the agenda for the meeting. T.C.A. § 8-44-102(b)(1)(E)(ii). The time limit for notice is the same as for notice of open meeting. The notice should be to the persons to whom notice of the open meeting is given. The notice should be posted the same as for notice of open meeting. Requirements for agenda items for executive sessions are the same as those required for the notice of an open meeting.

c. Minutes

Minutes of a secret meeting will not reflect the substance of what was discussed in an executive session, but no votes may be taken in executive session. T.C.A. § 8-4-104. For example, a governing body might meet in a closed session with its attorney to discuss the pros and cons of a case to consider whether to appeal an adverse trial court result. Then, the body would return to an open session to vote on whether to pursue the appeal, without discussing what was said in the closed session. The minutes are public records.

d. Requirement to meet in public before closing meeting

e. Requirement to state statutory authority for closing meetings before closure

f. Tape recording requirements

No. Although there is no requirement to tape record meetings, such a recording might save the governmental entities actions from being void under the act. In Phan v. Tenn. DOC & Ins., 2017 Tenn. App. LEXIS 153 (March 2, 2017), the court ruled that a vote that was held in public but was not recorded in the minutes was not invalidated because it was not in the minutes because a video recording of the vote was available.

F. Recording/broadcast of meetings

The Act makes no provision for recording or broadcast of meetings, but those means of public access have been employed, especially by the media. See Op. Att'y Gen. No. 95-126 (Dec. 28, 1995) (proposed city ordinance to ban video or photographic equipment at meeting of alderman would violate Tennessee Constitution and Open Meetings Act).

1. Sound recordings allowed

2. Photographic recordings allowed

G. Access to meeting materials, reports and agendas

These materials should be available as public records. The Act, however, does not guarantee that citizens may speak or otherwise participate in a meeting that is subject to the Act. Wills v. City of Memphis, 2016 U.S. Dist. LEXIS 54565 (W.D. Tenn. April 25, 2016)

H. Are there sanctions for noncompliance?

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

On its face, the Tennessee's Sunshine Law provides that the only exceptions to the Act must be based solely on constitutional grounds; however, the Act also has provided specific statutory exemptions to the Act.

1. Character of exemptions

2. Description of each exemption

The Act allows certain meetings subject to the Act to protect the confidentiality of proprietary information or trade secrets that relate to coverage of government employees under the Tennessee consolidated retirement system. T.C.A. § 8-44-102(b)(1)(E). Additionally, there are several other express exemptions contained in the Tennessee Code. Staff meetings of the Tennessee Industrial Finance Corporation held to consider applications for financing are not subject to the Act. T.C.A. § 4-17-408 (e). Under the Hazardous Chemical Right To Know Law, administrative hearings that involve trade secrets can be closed. T.C.A. § 50-3-2013(c)(1). Screening panels of the Board of Chiropractic Examiners utilized to investigate, mediate or arbitrate complaints are not subject to the Act. T.C.A. § 63-4-115(g). Similar screening panels of the state Board of Nursing are not subject to the Act. T.C.A. § 63-7-115(b)(3).

B. Any other statutory requirements for closed or open meetings

Although the Act requires that meetings be open to the public, the Act does not require governing bodies to permit members of the public to speak, comment, or actively participate in the meeting. Whittemore v. Brentwood Planning Comm'n., 835 S.W.2d 11 (Tenn. Ct. App. 1992). It is not a violation of the Act for a governing body to order the removal of a person who is disrupting the meeting.

C. Court mandated opening, closing

The Tennessee Supreme Court in Smith County Education Ass'n v. Anderson, 676 S.W.2d 328 at 335 (Tenn. 1984), held the attorney-client privilege to be a constitutionally required exception to protect discussion between governmental bodies and their attorneys concerning pending litigation. The court held that because the legislature has no authority to enact laws that interfere with the judicially imposed duty on an attorney to maintain clients' confidences and secrets, a construction of the Act requiring abrogation of this duty is an unconstitutional breach of the separation of powers and authority doctrines. Id. at 334. This attorney-client exception is a "narrow" one applying only when "the public body is a named party in a lawsuit" and only when the discussions in the meetings deal with "present and pending litigation." Id. at 334-35. In another similar case, the Tennessee Supreme Court continued to adhere to the Smith doctrine. Van Hooser v. Warren County Bd. of Education, 807 S.W.2d 230 (Tenn. 1991). The Court held that the school board properly conducted a closed meeting to discuss a pending controversy pertaining to a suspended school teacher. The Court seems to have eased the requirement that a group be a named party to a lawsuit to close a discussion. However, for the attorney-client privilege exception to apply, the group must actually be discussing only the pending controversy with its attorney in the closed session. Once any discussion begins concerning other matters, the meeting must be open to the public. In another case, during a public session of a school board meeting, members of the board recessed to discuss the matter at hand with their counsel. Immediately after reconvening, the board voted on the matter without verbalizing or discussing it. The court held that because this private meeting with counsel concerned a pending controversy that might result in litigation, the meeting did not violate the Act. Baltrip v. Norris, 23 S.W.2d at 341.

1. Deliberations closed, but not fact-finding

2. Only certain adjudications closed, i.e. under certain statutes

B. Budget sessions

C. Business and industry relations

Closed executive sessions if discussion or consideration of commercial or financial information or trade secrets. T.C.A. § 4-17-109(b). But meetings of county economic development board during which it carries out its function as a joint economic and community development board under T.C.A. § 6-58-114 are subject to the Act. Op. Att'y. Gen. No. 03-091 (July 24, 2003).

D. Federal programs

Presumably open. Specifically, the Act provides that community action agencies that administer community action programs under 42 U.S.C. § 2790, are governing bodies subject to the openness requirements of the Act. T.C.A. § 8-44-102(b).

H. Grand jury testimony by public employees

I. Licensing examinations

J. Litigation, pending litigation or other attorney-client privileges

Closed if discussion is between public body and attorney concerning pending litigation when public body is named party in a lawsuit. Tenn. Const. Art. II, §§ 1 and 2, as construed by Smith County Education Ass'n v. Anderson, 676 S.W.2d 328 (Tenn. 1984).

1. Any sessions regarding collective bargaining

2. Only those between the public employees and the public body

The enabling statute of the Board of Paroles does not require that parole decisions be made by meeting, and therefore the Open Meetings Act does not apply to the board's procedure for making parole decisions. Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478 (Tenn. 1997). But when the board does meet, proper notice of the meetings is required. Id. Also see T.C.A. § 40-28-105(b) (requiring that meetings of the board of paroles be conducted with notice and public ballots or public roll calls). See also Smith v. Harter, 20 TAM 8-35(Tenn. Ct. App. Jan. 27, 1995) (definition of "meeting" not so broad as to cover any alleged discussion among parole board members); Op. Att'y Gen. No. 95-10, 20 TAM 12-59 (March 3, 1995) (requests to members of Board of Paroles to involve parolees as informants in investigations is subject to the Act).

N. Personnel matters

Open. See Dorrier v. Dark, 537 S.W.2d 888 (Tenn 1976) (holding that public school teacher's termination hearing was void because in violation of Open Meetings law). But meetings of private, nonprofit corporations receiving money from the government may not always be open. T.C.A. § 8-44-102(B) (1995).

1. Interviews for public employment

2. Disciplinary matters, performance or ethics of public employees

3. Dismissal, considering dismissal of public employees

If conducted by a governing body, it must be open. A Civil Service Commission was not a governing body under the Act. Therefore, its deliberation over an employee’s termination was not a meeting under the Act. Redmon v. City of Memphis, 2010 Tenn. App. LEXIS 122 (Tenn. Ct. App. Feb. 19, 2010).

O. Real estate negotiations

State board of equalization meetings are subject to the Act. Op. Att'y Gen. No. 85-105 (April 8, 1985); however, T.C.A. § 10-7-504(a)(6) makes confidential state agency records containing opinions of value of real and personal property intended to be acquired for public purposes prior to final acquisition.

P. Security, national and/or state, of buildings, personnel or other

The Open Meetings Act makes no specific exemption for such matters. But see T.C.A. § 10-7-504(a)(3) (making confidential papers, documents, and papers of the military department that involve the security of the United States or State of Tennessee, including national guard personnel records, staff studies, and investigations).

2. When barred from attending

3. To set aside decision

This is the primary remedy under the Act. T.C.A. § 8-44-105. In 1990, however, the Tennessee Court of Appeals stated:

We do not believe that the legislative intent of this statute was forever to bar a governing body from properly ratifying its decision made in a prior violative manner. However, neither was it the legislative intent to allow such a body to ratify a decision in a subsequent meeting by a perfunctory crystallization of its earlier action. We hold that the purpose of the act is satisfied if the ultimate decision is made in accordance with the Public Meetings Act, and if it is a new and substantial reconsideration of the issues involved, in which the public is afforded ample opportunity to know the facts and to be heard with reference to the matters at issue.

Neese v. Paris Special Sch. Dist., 813 S.W.2d 423 (Tenn. Ct. App. 1990). In Allen v. City of Memphis, 2004 Tenn. App. LEXIS 403 (Jan. 22, 2004), the court concluded that a governing body's subsequent action to correct a failure to record minutes was nothing more than a "perfuctory crystallization of its earlier action" when there was no substantial reconsideration of the issue. Therefore, the court considered the action taken by the body to be void. If the body were to repeal its action taken in violation of the Act, however, this would render moot a claim under the Act. Cathey v. City of Dickson, 2002 Tenn. App. LEXIS 342 (Tenn. Ct. App. May 10, 2002).

Where a city held five subsequent public meetings to consider the sale of public building, this cured any violation of the Act by several officials meeting in private earlier with investors about the sale. Dossett v. City of Kingsport, 258 S.W.3d 139 (Tenn. Ct. App. 2007).

If the governing body rescinds its action taken at a meeting in violation of the Act, this will moot the violation. Person v. Board of Commissioners, 2009 Tenn. App. LEXIS 652 (Tenn. Ct. App. Sept 28, 2009).

1. Where to ask for ruling

a. Administrative forum

b. State attorney general

c. Court

2. Applicable time limits

3. Contents of request for ruling

4. How long should you wait for a response

5. Are subsequent or concurrent measures (formal or informal) available?

C. Court review of administrative decision

This is the starting place for any formal challenge to a closed meeting. In pursuing a court case, the petitioner must have more than “speculative evidence” that a secret meeting was conducted. Watson v. Waters, 375 S.W. 3d 282 (Tenn. Ct. App. 2012). In Watson, citizens challenged a public meeting claiming that county commissioners must have had an earlier secret meeting to have so quickly in agreeing in a public meeting to the adoption of procedural rules of significant consequence. All the commissioners, however, filed affidavits with the court stating there was no secret meeting. Therefore the court dismissed the lawsuit.

1. Who may sue?

Any citizen of Tennessee can bring suit to enforce the Act. T.C.A. § 8-44-106(a) (1995). “[A] threshold showing of an Open Meetings Act violation is sufficient to confer standing on any citizen.” Fannon v. City of LaFollette, 329 S.W. 3d 418 (Tenn. 2010); See Curve Elementary School Parent & Teachers Org. v. Lauderdale County Sch. Bd., 608 S.W.2d 855 (Tenn. Ct. App. 1980) (school parent and teacher association had standing to bring an action to enforce the Act because its individual members had standing); Metropolitan Air Research Testing Auth. Inc. v. Metro. Gov't of Nashville, 17 TAM 31-12 (Tenn. Ct. App. Feb. 10, 1994) (Tennessee corporation whose principal place of business is in Tennessee has standing to sue under the Sunshine Act); Helton v. City of East Ridge, 18 TAM 20-28 (Tenn. Ct. App. April 22, 1993) (stating that plaintiffs had standing based on Tenn. Code Ann. § 8-44-106(a)); City of Hendersonville v. City of Goodlettsville, 19 TAM 32-6 (Tenn. Ct. App. July 13, 1994) (requiring distinct palpable injury and a causal connection between the injury and challenged conduct in order to have standing).

2. Will the court give priority to the pleading?

The Act has no provision for priority to the pleading. But see Tenn. R. Civ. P. 65.03 (aggrieved party may seek restraining order without notice to opposing party if applicant will suffer immediate and irreparable injury before a hearing can be held).

3. Pro se possibility, advisability

4. What issues will the court address?

Courts have authority to nullify any action taken in violation of the Act, provided that nullification of actions does not apply to otherwise legal commitments affecting the public debt of the entity concerned. T.C.A. § 8-44-105. Furthermore, the court shall permanently enjoin any person found to be in violation of the Act, and each separate occurrence of meetings held in violation of the Act shall constitute a separate violation. T.C.A. § 8-44-106(c).

a. Open the meeting

b. Invalidate the decision

Yes. See Abou-Sakher v. Humphreys County, 995 S.W.2d 65 (Tenn. Ct. App. 1977) (County's decision to hire airport manager violated Act and was thus invalid.). However, the governing body might then ratify in a later open meeting the earlier decision found to have been reached in violation of the Act. Allen v. City of Memphis, 397 S.W. 3d. 572 (Tenn. Ct. App. 2012).

c. Order future meetings open

5. Pleading format

The statute provides for no specific pleading format, but Tennessee citizenship should be included in the allegations since that status is necessary for standing to enforce the Act. See Curve Elementary School Parent & Teachers Org. v. Lauderdale County Sch. Bd., 855 S.W.2d at 858; T.C.A. § 8-44-106(a).

6. Time limit for filing suit

7. What court?

Suit can be brought in the circuit courts, chancery courts, and other courts having equity jurisdiction, and these courts have the power "to issue injunctions, impose penalties, and otherwise enforce the purposes" of the Act. T.C.A. § 8-44-106. There is a right to a jury. Smith County Educ. Ass'n v. Anderson, 676 S.W.2d 328, 337 (Tenn. 1984).

8. Judicial remedies available

Judicial remedies include power to nullify any action taken in the unlawfully held meeting and to permanently enjoin further violations. An action taken by a governing body which is later determined to be void under the Open Meetings Act can still serve as the basis for another claim, such as discrimination. Forbes v. Wilson County Emergency District 911 Board, 966 S.W.2d 417 (Tenn. 1998).

9. Availability of court costs and attorney's fees

In Fannon v. City of LaFollette,329 S.W. 3d. 418 (Tenn. 2010), the court (with one justice dissenting) denied an award of attorney’s fees because the Act did not provide for attorney’s fees. The court did allow discretionary court costs (deposition/court reporter fees), which frequently are allowed in Tennessee litigation.

10. Fines

Arguably, fines are available under a liberal reading of T.C.A. § 8-44-106(a), however, there is no reported case indicating that this has been done. Based upon the Supreme Court’s ruling in Fannon as it relates to attorney’s fees, fines would be unlikely.

11. Other penalties

The Act mandates that the court retain jurisdiction over the case for one year and order the defendants to report in writing to the court semiannually of their compliance with the Act. T.C.A. § 8-44-106(d).

D. Appealing initial court decisions

1. Appeal routes

Appeals must be made pursuant to the Tennessee Rules of Appellate Procedure, which make no distinctions for meetings cases. Appeal as of right would be to the Tennessee Court of Appeals. Thereafter, permissive appeal may be made to the Tennessee Supreme Court within 60 days after the Court of Appeals' decision.

2. Time limits for filing appeals

3. Contact of interested amici

Interested amici can apprise themselves of open meetings issues that might appear before the Tennessee Supreme Court by reviewing the decisions of the Tennessee Court of Appeals that appear in Tennessee Attorneys Memo, a weekly publication containing a synopsis of decisions of that court.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court. The Tennessee Press Association, Tennessee Association of Broadcasters, and the Tennessee Coalition for Open Government might also join as amici.

V. Asserting a right to comment

A. Is there a right to participate in public meetings?

No. The Act does not require governing bodies to permit members of the public to speak, comment, or actively participate in the meeting. Whittemore v. Brentwood Planning Comm'n., 835 S.W.2d 11 (Tenn. Ct. App. 1992). It is not a violation of the Act for a governing body to order the removal of a person who is disrupting the meeting.

E. Are there sanctions for unapproved comment?

Appendix

The Tennessee General Assembly, has averaged adding approximately eight new exceptions each year since 1988.

There are a number of exceptions to the general right of access to public records under the Tennessee Public Records Act. While many of these exceptions are set forth in T.C.A. §§ 10-7-503 and 504 of the act, many more exist outside the act. Moreover, these exceptions are always changing and/or evolving. The following is a list of the exceptions to the Tennessee Public Records Act:

T.C.A. § 2-10-211(d) Information entered by any candidate to the Registry of Election Finance electronic filing system until the information is filed with the Registry of Election Finance.

T.C.A. § 2-11-202(a)(5) Report of any election law violations investigation conducted by the Coordinator of Elections.

T.C.A. § 2-6-202(c)(6) Requests and applications for absentee ballots until the end of the early voting period.

T.C.A. § 3-12-105 Work papers and intraoffice memoranda of Office of Legal Services for the General Assembly.

T.C.A. § 3-14-109 Work papers and intraoffice memoranda of Office of Program Evaluation within General Assembly.

T.C.A. § 4-3-304 (7) Working papers created, obtained or compiled by an internal audit staff within the state department of audit.

T.C.A. § 4-3-712, -730 Proprietary information acquired by the Department of Economic and Community Development is confidential only if so designated by the Department Commissioner and the Attorney General.

T.C.A. § 4-4-125 Social security numbers.

T.C.A. § 4-5-218 Permits state agencies to delete portions of agency documents and records, which other provisions of law designate as confidential. Allows agency to charge fee for documents.

T.C.A. § 4-6-140 Permits Commissioner of Correction to restrict access to records if access would result in jeopardy to lives of inmates and officers.

T.C.A. § 4-14-308 Trade secrets or commercial or financial information regarding the operation of any business conducted by an applicant for any form of assistance from the Tennessee Technology Development Corporation.

T.C.A. § 4-17-408(e) Applications (except the identity of the applicant) with supporting documents including personal financial records, trade secrets or proprietary information of applicants and all staff meetings or portions thereof for financing from the Tennessee Industrial Finance Corporation.

T.C.A. § 4-21-303(d) Human Rights Commission conciliation agreements if the complainant and respondent agree and the Commission determines that disclosure is not required to further the purposes of the Human Rights Act.

T.C.A. § 4-35-107 Information received by a state audit committee concerning illegal, improper, wasteful or fraudulent activity or any investigation thereof, except those matters disclosed in the final reports.

T.C.A. § 7-54-107(2)(c) All proposals for construction operation or maintenance of an energy production facility are open for public inspection after the contract is awarded except for trade secrets and confidential information contained in the proposals and identified as such.

T.C.A. § 7-59-305(d)(2) Deployment plans submitted by a cable or video service provider applying for a state-issued certificate of franchise authority.

T.C.A. § 7-59-306(c)(2) Supporting statements submitted to determine cable or video franchise fees due to a municipality or county.

T.C.A. § 8-3-104(10) Permits Governor to determine what records relating to the executive branch that are maintained by the Secretary of State require secrecy.

T.C.A. § 8-4-116(c) State comptroller's confidential work papers.

T.C.A. § 8-4-404 Information received pursuant to Comptroller's toll-free hotline for detecting improper actions by employees of community grant agencies.

T.C.A. § 8-4-406 Information received from the toll-free hotline number to report illegal, improper, or wasteful activity related to state agency or community grant supported services.

T.C.A. § 8-4-407 Annual report by comptroller of the treasury summarizing calls reporting improper or wasteful activity of a state agency or community grant supported services.

T.C.A. § 8-6-112 The notice to the Executive Director of the District Attorney's General Conference, the application for appointment of a District Attorney General Pro-Tem, and the proceedings on an application for criminal prosecution of a judge.

T.C.A. § 8-6-407 All documents, records, or tangible objects obtained by the Attorney General pursuant to his investigative authority.

T.C.A. § 10-7-504(a)(1) Medical records of patients in state hospitals or medical facilities or receiving medical treatment at state expense.

T.C.A. § 10-7-504(a)(2) Investigative records of TBI, criminal investigative files of motor vehicle enforcement division of Department of Safety relating to stolen vehicles or parts, and all files of the driver's license issuance division of the Department of Safety relating to bogus licenses issued to undercover agents.

T.C.A. § 10-7-504(a)(3) Records in possession of the Military Department involving state or national security.

T.C.A. § 10-7-504(a)(4) Records of students in public educational institutions.

T.C.A. § 10-7-504(a)(5) Records in possession of the office of Attorney General and Reporter relating to a pending or contemplated legal or administrative proceeding in which such office may be involved.

T.C.A. § 10-7-504(a)(6) State agency records containing opinions of value of real and personal property intended to be acquired for public purposes prior to final acquisition.

T.C.A. § 10-7-504(a)(7) Proposals for service contracts and sealed bids for the purchase of goods and services until the contract is fully executed or awarded.

T.C.A. § 10-7-504(a)(8) Investigative records of the internal affairs division of the department of correction or department of youth development.

T.C.A. § 10-7-504(a)(9) Official health certificates obtained and maintained by the state veterinarian.

T.C.A. § 10-7-504(a)(11) Records of historical research value given or sold to public archival institutions or libraries when the owner or donor of such records wishes to place restrictions on access to the records.

T.C.A. § 10-7-504(a)(12) Personal information contained in motor vehicle records which shall be open only pursuant to Title 55, chapter 25 (related to Federal Driver Privacy Protection Act) of the Tennessee Code Annotated.

T.C.A. § 10-7-504(a)(13) Memoranda, work notes, case files and communications related to mental health intervention techniques conducted by mental health professionals in a group setting to provide counseling and therapy to law enforcement officers, firefighters, paramedics and other emergency medical technicians.

T.C.A. § 10-7-504(a)(14) Riot, escape, and emergency transport plans of county jails and workhouses or prisons.

T.C.A. § 10-7-504(a)(15) A utility department's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence.

T.C.A. § 10-7-504(a)(16) A governmental entity's records of address, telephone number and Social Security number that might be used to locate someone who has a protection order from a court to protect such person from violence.

T.C.A. § 10-7-504(a)(17) The telephone number, address and any other information which might be used to locate the whereabouts of a domestic violence shelter or rape crisis center.

T.C.A. § 10-7-504-(a)(22) The audit working papers of the comptroller of the treasury and state, county, and local government internal audit staffs.

T.C.A. § 10-7-504(a)(23) Records containing the results of individual teacher evaluations administered by the State Board of Education.

T.C.A. § 10-7-504(a)(24) Commercial and financial information provided to the Alcoholic Beverage Commission that would give competitors an advantage over those who do not know or use such information.

T.C.A. § 10-7-504(a)(25) Records related to a student’s academic performance, financial status, medical or psychological treatment, and family information maintained by a voluntary association for interscholastic sports competition of private and public secondary schools.

T.C.A. § 10-7-504(a)(26) Job performance evaluations of employees in the Department of the Treasury, Secretary of State, public institutions of higher education, and the Comptroller’s Office.

T.C.A. § 10-7-504 (a)(27) Email addresses collected by the Department of State’s Division of Business Services.

T.C.A. § 10-7-504(a)(28) Proposals and statements of qualifications received by local government entities in response to a personal service, professional service, or consultant service request for proposals.

T.C.A. § 10-7-504(h) Identifying information about someone who "has been or may in the future be directly involved in the process of executing a sentence of death."

T.C.A. § 10-7-504(i) Information that would allow a person to obtain unauthorized access to confidential information or government property.

T.C.A. § 10-7-504(j) Identifying information of anyone who has requested the department of correction or the department of probation and parole to provide information regarding the status of a criminal proceeding or a convicted felon.

T.C.A. § 10-7-504(k) Addresses, phone numbers, Social Security Numbers, and the criminal offense at issue for those persons seeking compensation as crime victims.

T.C.A. § 10-7-504(l) Identifying information of those persons receiving services from the department of children’s services

T.C.A. § 10-7-504(m) Information directly related to the security of any government building.

T.C.A. § 10-7-504(n) Documents concerning pricing and other financial arrangements submitted to the state for health related procurements or requests for proposal

T.C.A. § 10-7-504(q) Certain information related to victims of sexual assault after the defendant has been convicted and sentenced. However, in The Tennessean v. Metropolitan Gov’t of Nashville, 485 SW 3d 857 (Tenn 2016), the court indicated this protection would also apply during the pendency of the criminal proceedings.

T.C.A. § 10-7-508 Director of records management has access to records where it is otherwise not available to the public.

T.C.A. § 11-1-102 Department of environment and conservation records about radioactive materials regulated under the Atomic Energy Act and the specific location of threatened, endangered, or rare species that would not be available to the public under the federal law or regulation.

T.C.A. § 12-3-2 Sealed bidding for state contracts generally.

T.C.A. § 12-4-414 Payroll records submitted to the Prevailing Wage Commission of the Department of Labor pursuant to the Prevailing Wage Act.

T.C.A. §§ 16-10-213; 16-11-206; 16-16-120 Information collected and reported to the federal bureau of investigation-NICS Index and the department of safety by chancery, county and probate, circuit and criminal courts.

T.C.A. § 33-10-408 The registration and other records of alcohol abuse treatment facilities.

T.C.A. § 36-1-102(6)(B); 36-1-111(a)(3); 36-1-116(e); 36-1-118(e)(4)(B)(ii); 36-1-125(a); 36-1-126(a)(5) Adoption records are confidential. But see T.C.A. § 36-1-127 Such records are available to those persons and family of those involved in the adoption.

T.C.A. § 36-1-116 Surrender information in adoptions.

T.C.A. § 36-1-125, -126 Records relating to an adoption proceeding after the final order of adoption or dismissal is entered. See Op. Att'y Gen. No. 94-15 (Feb. 4, 1994).

T.C.A. § 36-6-107 The address of the child and non-perpetrating parent in a case of child abuse or child sexual abuse.

T.C.A. § 36-6-224 Identifying information in an affidavit in a child custody case unless court ordered after a hearing.

T.C.A. § 37-1-131 Whether a delinquent child is on probation or in the custody of a state agency.

T.C.A. § 37-1-136 All reports and materials compiled by the Juvenile Court in connection with an assessment report, but this section is limited to only Nashville and Davidson County.

T.C.A. § 37-1-153 Limits access to Juvenile Court files to only those persons working on the case or with the juvenile, except as to acts of delinquency which would constitute one of nine serious crimes if committed by an adult.

T.C.A. § 37-1-154 Limits access to law enforcement records at the Juvenile Court to only those persons working on the case, or with the juvenile, or law enforcement officers of other jurisdictions.

T.C.A. § 37-1-155 All fingerprint and photograph records of a delinquent child.

T.C.A. § 37-1-409(a) Reports of harm and the identity of the reporter of child abuse.

T.C.A. § 37-1-506 Information identifying delinquents received by the Council for Juvenile and Family Court Judges.

T.C.A. § 37-1-612(a) Records concerning reports of child sexual abuse and all records generated as a result of such reports. See Op. Atty Gen. No. 11-21 (Mar. 11, 2011).

T.C.A. § 37-1-705(d) Records used in or related to teen court proceedings except as necessary to permit functioning of the teen court.

T.C.A. § 37-2-408(a) Records prepared in connection with the planning, placement, or care of a child in foster care.

T.C.A. § 37-2-411(b) Records obtained by the Department of Human Services for preparation of the annual report on foster care.

T.C.A. § 37-5-107 Application, certificates, records, reports and all legal documents, petitions, and records identifying a child or family receiving services from the Department of Children's Services.

T.C.A. § 37-5-607 Confidential information in cases reviewed by an independent local advisory board for a multi-level response system for children and families.

T.C.A. § 37-10-304 The record of evidence submitted to a court in connection with an application for a minor to have an abortion.

T.C.A. § 41-21-242 Identifying information concerning a person who has been notified of the release of certain felons from correctional facilities.

T.C.A. § 41-21-408 Reports of violence within correctional facilities if in the discretion of the warden or chief administrative officer the release of information would endanger or compromise the security of an inmate or the institution.

T.C.A. § 45-1-117 Criminal history records information gathered as a condition of employment with the department of financial institutions.

T.C.A. § 45-1-126 Compliance review documents of an audit, loan review, or compliance committee appointed by the board of directors of a depository institution whose functions are to evaluate and seek to improve loan underwriting, asset quality, financial reporting, and compliance with federal or state regulatory requirements.

T.C.A. § 45-2-103(a)(3)(C) Information obtained by the Commissioner of Financial Institutions when acting upon application for change of control of a bank.

T.C.A. § 45-2-614 Any regulatory rating established, assigned, or accepted pursuant to agreement with a federal regulatory agent by the Tennessee Department of Banks and Financial Institutions.

T.C.A. § 45-8-221 Information obtained by the banking commissioner or any financial institution's examiner for the purposes of ascertaining the true condition of the affairs of a business and industrial development corporation.

T.C.A. § 45-8-221(a) Information obtained by the Commissioner of Financial Institutions or any financial institutions examiner of a business and industrial development corporation obtained for the purpose of ascertaining the true condition of the affairs of such corporation.

T.C.A. § 49-7-120(b) Trade secrets, patentable information, and commercial or financial information used in research done at state colleges and universities.

T.C.A. § 49-9-14. Information concerning the research mission of the University of Tennessee.

T.C.A. § 49-7-140 Personally identifiable information about the donor or donor's family of gifts made to public institutions of higher education or foundations.

T.C.A. § 49-7-216 Confidential student data or records concerning students enrolled in TICUA institutions provided by the Tennessee Independent Colleges and Universities Association or any of its member institutions as to the Tennessee higher education commission.

T.C.A. § 49-10-804 Register of blind persons in the state prepared and maintained by the commissioner of human services.

T.C.A. § 49-14-103 Information received by internal auditor of University of Tennessee Board of Trustees or the Board of Regents relating to illegal, improper, wasteful or fraudulent activity or any ongoing investigation thereof.

T.C.A. § 49-50-1408 Reports of alleged falsification, waste, or mismanagement of public education funds, but only to the extent the person reporting requests that the person's reporting name not be revealed.

T.C.A. § 50-3-302 Name, job title and other information that may be used to identify a witness interviewed during the course of an investigation of the Tennessee Department of Labor and Workforce Development.

T.C.A. § 50-3-304(a)(3) Name of employee giving notice to Commissioner of Labor of possible violation of Occupational Safety and Health Act, if the employee requests.

T.C.A. § 50-3-504 Trade secrets or otherwise privileged information in the labor and workforce development office.

T.C.A. § 50-3-702 An employer's first report of work injury records maintained by the worker's compensation division.

T.C.A. § 50-3-914(a) Information containing or revealing trade secrets obtained by the Commissioner of Labor while enforcing the occupational safety and health laws.

T.C.A. § 50-3-2013 Information containing or revealing trade secrets obtained by the Commissioner of Labor while enforcing the Hazardous Chemical Right to Know Law.

T.C.A. § 50-7-701(a)(1)(B) Information obtained by the Commissioner of the Department of Employment Security while enforcing the Employment Security Law.

T.C.A. § 50-9-106 Records of the observations leading to a controlled substances reasonable suspicion test.

T.C.A. § 53-10-306 Information of controlled substance database of the Commissioner of Commerce and Insurance. But see, T.C.A. § 53-10-308 Allowing release of such information under certain circumstances.

T.C.A. § 56-1-411 The commissioner of insurance may not disclose the contents of an examination report, preliminary examination, or report of any insurance company, except to law enforcement officials and only if they agree to maintain the confidentiality of such reports.

T.C.A. § 56-2-801 Insurance Commissioner shall keep confidential information received from National Association of Insurance Commissioners from another state or country that is confidential under the laws of those jurisdictions.

T.C.A. § 56-3-111 Report of insurance companies to the Board of Medical Examiners concerning medical malpractice settlements in excess of a certain amount.

T.C.A. § 56-6-117(g) Information obtained by the Department of Commerce and Insurance as furnished by an insurer, producer, employee or agent thereof for the purposes of terminating the appointment, employment or contract or other insurance business relationship with a producer.

T.C.A. § 56-11-103(b)(2) Identity of lender where loan is consideration for merger or acquisition of control of an insurance holding company, if the lender requests.

T.C.A. § 56-11-104(c) Information submitted in the pre-acquisition notification that may be filed when there is a change in control of an insurer authorized to do business in this state.

T.C.A. § 56-11-108 Information obtained by the Commissioner of Commerce and Insurance pursuant to an examination of the financial condition of an insurance company.

T.C.A. § 56-11-208 Information held by National Association of Insurance Commissioners or a third party consultant pursuant to an insurance company’s own risk and solvency assessment.

T.C.A. § 56-12-211(a)(4) Information furnished by the Department of Commerce and Insurance to National Association of Insurance Commissioners concerning regulatory information system ratios and listings of companies not included in the ratios.

T.C.A. § 56-22-115 Information, materials, documents compiled by the department of commerce and insurance during examination of a county mutual insurance company.

T.C.A. § 56-46-109 All risk-based capital reports and risk-based capital plans with respect to any domestic insurer or foreign insurer which are filed with the commissioner of insurance.

T.C.A. § 56-50-107(b) Names and individual identification data for owners and insureds for purposes of life settlements.

T.C.A. § 56-51-150 Information pertaining to the diagnosis, treatment or health of any enrollee of a prepaid limited health service organization or any state investigation of such organization by law enforcement, regulatory, licensing or other governmental agency for purposes of prosecuting or preventing insurance fraud.

T.C.A. § 56-53-109(c) Information submitted to or generated by law enforcement or insurance department for the purposes of detecting or prosecuting insurance fraud.

T.C.A. § 56-54-107 Information submitted to the department of commerce and insurance pursuant to the Tennessee Medical Malpractice Reporting Act.

T.C.A. § 59-8-406 Information which pertained to only the analysis of the chemical and physical properties of coal seams, test borings, core samples, or soil samples.

T.C.A. § 59-8-413 The identity of any person supplying information concerning a violation of any requirement of the Coal Surface Mining Act.

T.C.A. § 60-1-504(b)(4) Data maintained by the State Geologist on the drilling of mineral test holes for a period of six months.

T.C.A. § 60-1-505(c) All information pertaining to the application for and issuance of permits for mineral test holes maintained by the Oil and Gas Board.

T.C.A. § 62-1-116 The accountant's privilege, which presumably applies to accountants employed by the government.

T.C.A. § 62-43-113(b)(2)(A)(i)(g) Information furnished to the Department of Labor and Workforce Development related to staff leasing companies or groups.

T.C.A. § 62-43-117 All materials compiled by the Commissioner of Commerce and Insurance in determining whether a person has violated or is in danger of violating statutes related to employee leasing.

T.C.A. § 63-1-117(b)(2) Identifying information of complainant and medical records concerning an allegation against a practitioner of the healing arts to the Division of Health Related Boards until introduced at disciplinary proceedings.

T.C.A. § 63-1-136(d) Information provided to non-profit association for the purpose of assisting in the rehabilitation of impaired health care practitioners.

T.C.A. § 63-1-138 (c) Documents produced by health practitioner screening panels before a filing of a notice of charges and such documents or records form the basis for such filing of a notice of charges.

T.C.A. § 63-2-101 A healthcare provider's patient's medical records.

T.C.A. § 63-4-115 Activities of screening panels regarding suspension, revocation, or denial of a certificate of a health practitioner.

T.C.A. § 63-11-213 Communications between a licensed psychologist or psychological examiner and his or her client are privileged, which presumably would apply to any psychologist or psychological examiner employed by the government.

T.C.A. § 66-7-107 The identity of any person who provides evidence or other information that results in an eviction or other termination of residency where the premises or the area immediately surrounding the premises are knowingly used in violation of criminal statutes prohibiting drug use and prostitution.

T.C.A. § 66-29-154 Treasurer’s office working papers concerning an audit for unclaimed property and information that identifies a particular person, institution, business, or entity as the subject of an audit.

T.C.A. § 67-1-1702 Returns and tax information filed with or in the possession of the Commissioner of Revenue.

T.C.A. § 67-1-1705(c) Investigative records of the special investigations unit of the Department of Revenue relating to potential criminal prosecutions of persons for violation of the tax laws.

T.C.A. § 67-4-722(d)(1) Statements, reports, or returns of taxpayers and all audits of their records and files.

T.C.A. § 67-4-2808 Information obtained from the taxation of unauthorized substances, e.g. assuming a drug dealer would pay taxes on illegal gains, he should not have to worry that his reporting of income from illegal activity will result in prosecution because he reported such illegal activity for tax purposes.

T.C.A. § 68-3-205 Vital records (records of birth, death, marriage, divorce, annulment) except that the fact and date of a birth or death is not confidential. Permits Commissioner of Health and Environment to determine by rule what portion of vital records is not confidential.

T.C.A. § 68-10-113 All records held by the Department of Health and Environment and local health departments concerning known or suspected cases of sexually transmitted diseases.

T.C.A. § 68-10-116 The results of hepatitis B or HIV testing on any arrested person who may have exposed his or her blood or other bodily fluid to a law enforcement officer.

T.C.A. § 68-10-117 The HIV or hepatitis B test results of any person who may have exposed an emergency worker to any potentially life-threatening, airborne or bloodborne diseases. The HIV or hepatitis B virus test results of any employee of a healthcare facility who is exposed to the blood or other bodily fluid of a patient.

T.C.A. § 68-11-207 Privileged or confidential information in reports submitted to the commissioner of health by a health-care facility during probation of its license.

T.C.A. § 68-11-210(b)(5)(C) Joint Commission on Accreditation of Hospital's report concerning the accreditation of a hospital or nursing home.

T.C.A. § 68-11-211(c) Information obtained to assist health care providers and states to collect meaningful health care data to minimize the frequency and severity of patient abuse and to improve the delivery of health care services.

T.C.A. § 68-11-222(c)(2) Results of HIV tests.

T.C.A. § 68-11-238 Marketing strategies and strategic plans of hospitals subject to the open meetings laws.

T.C.A. § 68-11-259 Trauma registry information that reasonably could be expected to reveal the identity of a patient or identities of specific reporting facilities.

T.C.A. § 68-11-255(c) The identity of the parents or infant concerning the surrendering of custody of an unwanted infant.

T.C.A. § 71-6-203(8)(B) Information submitted by child abuse services for the Department of Children Services relating solely to recipients of child abuse prevention services for the narrow purposes of tracking the effectiveness of child abuse prevention services.